Human Rights Committee: Communication procedure

Applies to/Se aplica a

Summary

The First Optional Protocol establishes an individual complaints mechanism, allowing individuals to complain to the Human Rights Committee about a violation of one or several of their rights guaranteed by the International Covenant on Civil and Political Rights. Communications may only be submitted against a State that has ratified the First Optional Protocol and after domestic remedies have been exhausted. In addition, the claim should not have been submitted to another treaty body mechanism, nor to a regional mechanism such as the Inter-American Commission on Human Rights, the European Court of Human Rights, the African Commission on Human and Peoples' Rights, or the African Court on Human and Peoples' Rights.

If the Committee finds that a State Party has failed in its obligations under the ICCPR, it will require that the violation be remedied and ask that the State Party provide follow-up information in this regard. The Human Rights Committee's decisions and its follow-up activities are made public and are included in the Committee's Annual Report to the General Assembly.

1. Likely results from use of mechanism

A decision from the Human Rights Committee on the case either declaring a violation of the Covenant by the State concerned, or declaring the case inadmissible. If a violation of the Covenant is found, the Committee may recommend that the State concerned make amends, or rectify the situation. This might include recommending compensation to the complainant, or releasing him or her from prison.

2. To which States does the mechanism apply?

This mechanism applies to States parties to the ICCPR which have also signed and ratified the First Optional Protocol (http://www2.ohchr.org/english/law/ccpr-one.htm).
A complaint can be brought against any State which had jurisdiction over the victim at the moment of the violation, and which has ratified the Optional Protocol. While the violation itself can have taken place before the Optional Protocol entered into force for the State concerned, it is important that some domestic court took a decision in relation to this violation after the Optional Protocol came into force.

3. Who can submit information?

Under the First Optional Protocol the Committee can receive Individual Communications from any individual under the jurisdiction of a State that is party to the First Optional Protocol who claims that his or her rights under the Covenant have been violated by the State Party.
If you wish to file a complaint on behalf of someone else or a group, you must submit a written consent from each of the victims you wish to represent or proof that they are incapable of giving such consent.

4. When to submit information?

There is no time limit after the alleged event for receiving information but it is best to submit the communication as soon as possible after the exhaustion of domestic remedies. In exceptional cases, submission after a protracted period may result in your case being considered inadmissible by the Committee.
Under Rule 96c of the Working Methods of the Committee, a communication submitted after 5 years from the exhaustion of domestic remedies, or after 3 years from the conclusion of another procedure of international investigation or settlement may constitute an abuse of the right of submission.
Repeated claims to the Committee on the same issue although they have already been dismissed are considered an abuse of the complaints process.

5. Special rules of procedure or advice for making a submission?

How to write a complaint:

The complaint mechanisms are designed to be simple and accessible to all. You do not need to be a lawyer or even familiar with legal and technical terms to bring a complaint to a Committee.

For a complaint to be admissible, it needs to meet the following requirements:

It has to be submitted by the individual whose rights have been violated, or with the written consent of the individual. Only in exceptional cases, where the individual concerned is unable to give consent, this requirement may be ignored. Anonymous complaints will not be considered.

Domestic remedies need to have been exhausted, which means all domestic appeal procedures need to have been tried. However, if you can demonstrate that local remedies are not effective (for example, because the highest court of the country already ruled on a very similar case), not available, or unduly prolonged, this requirement may be ignored.

Not be under consideration by another international investigation or settlement procedure.

A complaint, sometimes also called a “communication” or a “petition” need not take any particular form. However, it needs to be in writing and signed (which means email complaints will not be considered). It should provide basic personal information - your name, nationality and date of birth - and specify the State party against which your complaint is directed.

A complaint needs to include – preferably in chronological order – all the facts on which your claim is based, and all efforts that have been made to exhaust domestic remedies (include copies of relevant court decisions and a summary in one of the working languages of the Committee).

It is useful to quote the relevant treaty articles which correspond to your case. It should be explained how the facts of the case disclose a violation of those articles. A model complaint form that can be used can be found at http://www2.ohchr.org/english/bodies/docs/annex1.pdf.

Emergency procedures:

If there is a fear of irreparable harm (for example in cases of imminent execution or deportation to torture) before the Committee has examined the case, it is possible to request an intervention by the committee to stop an imminent action (or omission) by a State, which may cause such harm. Such an intervention is called a “request for interim measures of protection”.

6. What happens to the submission (how long will it take)?

The two major stages in any case are known as the “admissibility” stage and the “merits” stage. The "admissibility" of a case refers to the formal requirements that your complaint must satisfy before the relevant committee can consider its substance. The "merits" of the case are the substance, on the basis of which the committee decides whether or not rights under a treaty have been violated.

If the complaint contains the essential elements outlined above, the case is registered, that is to say formally listed as a case for consideration by the Committee. Due to a big back-log of complaints it can take at least two years for a case to be considered after registration.
After the registration the complaint is transmitted to the State party concerned to give it an opportunity to comment. The State is required to respond to the complaint within six months. If the State party fails to respond to the complaint, you are not disadvantaged, Reminders are sent to the State party. If there is still no response, the committee takes a decision on the case on the basis of the original complaint.
Once the State replies to a submission, the complainant is offered an opportunity to comment. At that point the, the case is ready for a decision by the Committee.
The committee considers Individual Communications in closed session, but its Views (decisions) and the follow-up are public.

10.5 In the present cases, the Committee considers that the authors' refusal to be drafted for compulsory military service derives from their religious beliefs, which have not been contested and which are genuinely held, and that the authors' subsequent prosecution and sentences amount to an infringement of their freedom of conscience, in breach of article 18, paragraph 1, of the Covenant. The Committee recalls that repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibits the use of arms, is incompatible with article 18, paragraph 1, of the Covenant.

The complaint concerned the cases of more than 100 Jehovah's Witnesses sentenced to imprisonment for their conscientious objection to military service.

“7.3 (…) The right to conscientious objection to military service inheres in the right to freedom of thought, conscience and religion. It entitles any individual to an exemption from compulsory military service if this cannot be reconciled with that individual’s religion or beliefs. The right must not be impaired by coercion. A State may, if it wishes, compel the objector to undertake a civilian alternative to military service, outside the military sphere and not under military command. The alternative service must not be of a punitive nature. It must be a real service to the community and compatible with respect for human rights.
“7.4 In the present cases, the Committee considers that the authors' refusal to be drafted for compulsory military service derives from their religious beliefs which, it is uncontested, were genuinely held and that the authors’ subsequent conviction and sentence amounted to an infringement of their freedom of conscience, in breach of article 18, paragraph 1 of the Covenant. Repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibit the use of arms, is incompatible with article 18, paragraph 1 of the Covenant.”

7.4 The Committee notes that the authors' refusal to be drafted for compulsory military service was a direct expression of their religious beliefs which, it is uncontested, were genuinely held and that the authors’ subsequent conviction and sentence amounted to an infringement of their freedom of conscience and a restriction on their ability to manifest their religion or belief. The Committee finds that as the State party has not demonstrated that in the present cases the restrictions in question were necessary, within the meaning of article 18, paragraph 3, it has violated article 18, paragraph 1, of the Covenant.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, concludes that the facts before the Committee reveal, in respect of each author, violations by the Republic of Korea of article 18, paragraph 1 of the Covenant.

The Committee, therefore, considers that the State party has not demonstrated that in the present case the restriction in question is necessary, within the meaning of article 18, paragraph 3, of the Covenant.
The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, concludes that the facts as found by the Committee reveal, in respect of each author violations by the Republic of Korea of article 18, paragraph 1, of the Covenant.

The Committee reiterates its position that article 26 does not prohibit all differences of treatment. Any differentiation, as the Committee has had the opportunity to state repeatedly, must however be based on reasonable and objective criteria. In this context, the Committee recognizes that the law and practice may establish differences between military and national alternative service and that such differences may, in a particular case, justify a longer period of service, provided that the differentiation is based on reasonable and objective criteria, such as the nature of the specific service concerned or the need for a special training in order to accomplish that service.

4.2. The Committee notes that the author seeks to apply the idea of conscientious objection to the disposition by the State of the taxes it collects from persons under its jurisdiction. Although article 18 of the Covenant certainly protects the right to hold, express and disseminate opinions and convictions, including conscientious objection to military activities and expenditures, the refusal to pay taxes on grounds of conscientious objection clearly falls outside the scope of protection of this article.

4.3. The Human Rights Committee concludes that the facts as submitted do not raise issues under any of the provisions of the Covenant. Accordingly, the author's claim is incompatible with the Covenant, pursuant to article 3 of the Optional Protocol.

Although Finland recognised the right to conscientious objection at the time of the complaint, the complainant was initially not recognised as a conscientious objector, and on appeal was ordered to perform unarmed military service, which he refused. He was subsequently sentenced to 9 months' imprisonment for refusing military service.

The Human Rights Committee declared the complaint inadmissible, stating that “the Covenant does not provide for the right to conscientious objection; neither article 18 nor article 19 of the Covenant, especially taking into account paragraph 3 (c) (ii) of article 8, can be construed as implying that right.”

The complainant's application for recognition as conscientious objector was rejected by the Finnish authorities, and the complaint was then ordered to perform military service, which he refused. He was subsequently sentenced to 11 months' imprisonment.

The Committee declared the complaint inadmissible in relation to article 18 (right to conscientious objection), and also was “of the view that Mr. Muhonen has no right to compensation which the Finnish authorities have failed to honour and that consequently there has been no breach of article 14 (6) of the Covenant.”

The case concerned a conscientious objector whose application for conscientious objection had been rejected by the Dutch authorities. He subsequently refused to put on a uniform when called up for military service. He was then sentenced to nine months' imprisonment.
“The Committee observes that the authorities of the State party evaluated the facts and arguments advanced by the author in support of his claim for exemption as a conscientious objector in the light of its legal provisions in regard to conscientious objection and that these legal provisions are compatible with the provisions of article 18. (...) The Committee observes that the author failed to satisfy the authorities of the State party that he had an "insurmountable objection of conscience to military service.. because of the use of violent means” (para. 5). There is nothing in the circumstances of the case which requires the Committee to substitute its own evaluation of this issue for that of the national authorities.”

8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, concludes that the facts before the Committee reveal, with respect to each of the 50 authors, violations by the Republic of Korea of articles 9, paragraph 1; and 18, paragraph 1, of the Covenant.
9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, including expunging their criminal records and providing them with adequate compensation. The State party is under an obligation to avoid similar violations of the Covenant in the future, which includes the adoption of legislative measures guaranteeing the right to conscientious objection.